Siwek v. White

905 N.E.2d 278, 388 Ill. App. 3d 152
CourtAppellate Court of Illinois
DecidedFebruary 27, 2009
Docket1-07-2600
StatusPublished
Cited by10 cases

This text of 905 N.E.2d 278 (Siwek v. White) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Siwek v. White, 905 N.E.2d 278, 388 Ill. App. 3d 152 (Ill. Ct. App. 2009).

Opinion

JUSTICE O’MARA FROSSARD

delivered the opinion of the court:

On June 27, 2003, plaintiff-appellee Christine Siwek was involved in an automobile accident while operating a vehicle owned by plaintiffappellee Jerrold D. Erickson. Siwek’s insurer, defendant-appellant, American Access Casualty Company (American), informed the State of Illinois that Siwek’s insurance policy had been cancelled and she was therefore not covered for the accident. Following an administrative hearing, Siwek’s driver’s license was suspended and the plaintiffs brought the instant suit for administrative review, declaratory judgment, and injunctive relief. The plaintiffs’ complaint generally alleged that the insurance policy was never properly canceled and Siwek was therefore properly insured at the time of the accident.

The trial court dismissed American’s affirmative defenses, granted the plaintiffs’ motion for summary judgment, and awarded the plaintiffs attorney fees pursuant to section 155 of the Illinois Insurance Code. 215 ILCS 5/155 (West 2006). On appeal, American contends that the trial court erred in dismissing its affirmative defenses and in granting summary judgment to the plaintiffs, because the insurance policy was properly canceled before the accident. American also asserts that the award of attorney fees and costs under section 155 was inappropriate because its actions were not vexatious and unreasonable and, in any case, no benefits due Siwek were ever denied or delayed. We affirm.

I. BACKGROUND

On July 27, 2003, Christine Siwek was involved in an automobile accident while operating Erickson’s vehicle. The plaintiffs notified the Illinois Department of Transportation (IDOT) of the accident and identified American as their liability insurer. However, on September 17, 2003, IDOT informed counsel for plaintiffs that America contended the insurance policy had been cancelled on May 13, 2003. Therefore, IDOT certified the names of both Erickson and Siwek to the Illinois Secretary of State as having either owned or operated a vehicle involved in an accident without proper liability coverage. On September 22, 2003, the Illinois Secretary of State issued a notice of the suspension of Erickson’s driving privileges based upon the IDOT certification. Erickson requested an administrative hearing, which was held before hearing officer and defendant Mary Beth Wheeler.

At the hearing, Erickson testified that he owned the vehicle Siwek was driving but had no other involvement in the accident. Siwek testified that insurance was purchased from American through an insurance broker, defendant Illinois Insurance Center, Inc., and she never received any notice that the insurance had been canceled. Siwek and Erickson also presented a memo from Illinois Insurance Center, dated May 19, 2003, containing an amended insurance identification card and declaration page issued by American to Jerrold Erickson (with Siwek identified as a co-operator), dated May 14, 2003, and effective from March 25, 2003, to September 7, 2003.

On January 30, 2004, the Illinois Secretary of State issued an order adopting Wheeler’s written findings and recommendations, dismissing the matter as to Erickson and suspending Siwek’s driver’s license and driving privileges as of February 13, 2004. However, the written findings specifically noted that: “With respect to insurance, if SIWEK was covered at the time of this occurrence, either the insurance company or its agent needs to confirm such coverage to the Illinois Department of Transportation. Once the requisite coverage is confirmed, appropriate action will be taken by the Secretary of State.”

On February 7, 2004, the plaintiffs filed a two-count complaint in the circuit court. The first count sought administrative review of the Secretary of State’s decision, and the second count sought declaratory and injunctive relief against American. Specifically, the plaintiffs asked for a declaratory judgment that the American insurance policy was in full force and effect on the date of the accident and that American had a duty to certify that fact to the State of Illinois.

Siwek also sought a temporary restraining order to enjoin the Secretary of State from suspending her driving privileges pending resolution of the case. The trial court denied this motion, finding that the pleadings demonstrated an issue of fact as the existence of insurance. However, the court did stay the State’s order of suspension pending resolution of the plaintiffs’ suit pursuant to section 3 — 111(a)(1) of the Administrative Review Law. 735 ILCS 5/3— 111(a)(1) (West 2004).

On February 20, 2004, American filed an answer denying the material allegations of the plaintiffs’ complaint as well as its first set of affirmative defenses. The plaintiffs successfully moved to dismiss these initial affirmative defenses, as well as a number of subsequently filed defenses, until American filed its fourth amended affirmative defenses on May 15, 2006. In this pleading, American asserted two main arguments.

First, American contended that the insurance policy was originally procured through an independent insurance broker, Illinois Insurance Center, after a previous policy with another insurer had been cancelled. The policy was issued to Erickson, Siwek was identified as a cooperator, and it was to be effective from March 25, 2003, to September 7, 2003. Up-front payment for the policy was provided by Fullerton Finance Company (Fullerton), a premium finance company, with monthly payments thereafter to be made by the plaintiffs to Fullerton. However, on or about May 13, 2003, American received a notice from Fullerton that the policy should be immediately canceled due to the plaintiffs’ failure to pay. American honored this request and cancelled the policy, effective May 13, 2003, as it argued it was compelled to do by section 143.14(c) of the Illinois Insurance Code. 215 ILCS 5/143.14(c) (West 2002).

Second, American asserted that its policy specifically contained language obligating it to provide coverage only “in consideration of the payment of the premium.” Because the required premium had not been paid by or on behalf of the plaintiffs, there was no consideration for any converge and therefore American had no obligation to provide coverage for Siwek’s accident.

On June 22, 2004, the plaintiffs moved to dismiss American’s fourth amended affirmative defenses, with prejudice. With respect to American’s first argument, the plaintiffs asserted a number of reasons why the purported May 13, 2003, cancellation of the policy was ineffective as a matter of law. These included the fact that Fullerton was not authorized to cancel the policy by a properly executed power of attorney and that the plaintiffs were never properly notified of the cancellation. Additionally, the plaintiffs noted that, irrespective of the purported May 13, 2003, cancellation, on May 14, 2003, American issued an amended insurance identification card and declaration page stating that the plaintiffs were covered by liability coverage through September 7, 2003.

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Bluebook (online)
905 N.E.2d 278, 388 Ill. App. 3d 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siwek-v-white-illappct-2009.